Soon v. Kammann

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 25, 2024

NO. S-1-SC-39544

MAILE SOON,

Petitioner-Petitioner,

v.

JEANNINE KAMMANN,

Respondent-Respondent

ORIGINAL PROCEEDING ON CERTIORARI
Gerard J. Lavelle, District Judge

Atkinson & Kelsey, P.A.
Thomas C. Montoya
Albuquerque, NM

for Petitioner

ACLU of New Mexico Foundation
Maureen A. Sanders
Elinor J. Rushforth
Albuquerque, NM

for Respondent
OPINION

VIGIL, Justice.
{1} We are reminded yet again that the touchstone of a custody adjudication in

New Mexico is not genetics, gender, or family composition, but the best interest of

the child. This case requires us to determine whether a person’s admission to not

being a genetic parent of a child is sufficient to rebut a presumption of parentage

under the New Mexico Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11A-

101 to -903 (2009, as amended through 2021). We conclude that it is not. Instead,

we hold that the district court must follow the procedures in the UPA, which

establish specific admissibility requirements for the results of genetic testing,

including a requirement that the district court consider the best interest of the child

before ordering such testing.

{2} Subsequent to oral argument in this case, we issued an order that Jeannine

Kammann is a legal parent to the twin children born to Kammann’s spouse, Maile

Soon, during their marriage. Herein, we explain our reasoning.

I. FACTUAL AND PROCEDURAL BACKGROUND
{3} Soon and Kammann shared a desire to bring children into their relationship.

They first began assisted reproduction treatment prior to marrying, and Soon
conceived by an intrauterine insemination procedure1 approximately ten months into

the marriage. Kammann fully participated in Soon’s prenatal medical care.

{4} The relationship between the two women faltered, and Soon moved out of

their shared home during the pregnancy. She subsequently filed for divorce, but the

couple remained married when Soon gave birth. After the twins were born,

Kammann visited the twins in the hospital and again after they went home, conferred

about their names, and paid child support to Soon.

{5} The custody battle quickly became contentious, and Soon moved to dismiss

Kammann’s parentage claim for lack of standing. Soon did not dispute that

Kammann was presumed to be a parent of the twins under Section 40-11A-204(A)

of the UPA because the children were born during the marriage. But Soon argued

that Kammann nevertheless lacked standing under the UPA because Kammann is

not genetically related to the twins and therefore, pursuant to the UPA, the marriage

presumption was rebutted.

1
“Intrauterine insemination” is a form of assisted reproduction, Section 40-
11A-102(D)(1), that involves “introducing sperm into the female reproductive
organs by means other than sexual intercourse.” Theresa Glennon, Choosing One:
Resolving the Epidemic of Multiples in Assisted Reproduction, 55 Vill. L. Rev. 147,
154 (2010).

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{6} Kammann argued, in relevant part, that it is undisputed that the twins were

born during the marriage and that this fact establishes her standing as a presumed

parent under the UPA and case law.

{7} After a hearing and additional briefing, the district court ruled in Soon’s favor.

At the hearing, Kammann conceded to not being a genetic or biological parent of the

twins. The district court accepted that concession, concluding that Kammann is not

the genetic or biological parent of the twins and that the marriage-based presumption

of parentage was rebutted.

{8} Kammann appealed to the Court of Appeals. Soon v. Kammann, 2022-

NMCA-066, 521 P.3d 110. She argued in relevant part that the district court was

wrong to conclude on the basis of her statements that she was not genetically related

to the twins and regarded her courtroom statements as responses constrained to

follow statutory procedure. Id. ¶ 10. The Court of Appeals agreed and reversed the

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district court’s conclusion that Kammann’s statements rebutted the presumption of

marriage. Id. ¶ 23.2

{9} Soon appealed to this Court, and we granted certiorari on all questions

presented. We held oral argument and ruled that Kammann is a legal parent of the

twins. We explain that ruling next, addressing only the issues relevant to our decision

and without passing judgment on any issue we do not discuss.

II. DISCUSSION
{10} Soon argues that the Court of Appeals incorrectly concluded that the UPA

requires genetic testing to overcome the marriage presumption of parentage. Instead,

Soon argues, it was sufficient that Kammann testified that she was not the genetic or

biological mother of the twins. She also argues that, in any event, Kammann’s

2
The Court of Appeals also held that the district court misconstrued UPA
provisions providing that parentage can be established if a person consents to
assisted reproduction by a woman in a record signed by both “before the placement
of the eggs, sperm or embryos.” Section 40-11A-704(A); see also Soon, 2022-
NMCA-066, ¶¶ 25, 30. The district court concluded “that the signed consent must
relate to the specific procedure that resulted in pregnancy and the eventual birth of
the children.” Id. ¶ 26 (emphasis added). The Court of Appeals disagreed, holding
that the district court must examine whether the “written evidence establishes
Kammann’s consent to assisted reproduction.” Id. ¶ 31. Soon questioned this ruling,
and we granted certiorari on the question presented. However, because we conclude
on other grounds that Kammann is a legal parent to the twins, we do not discuss this
issue any further.

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argument on this point was not preserved in the district court. As stated herein

previously, we disagree with Soon and affirm the Court of Appeals on both issues.

A. Standard of Review
{11} “Statutory interpretation is an issue of law, which we review de novo.”

Chatterjee v. King, 2012-NMSC-019, ¶ 11, 280 P.3d 283 (citation omitted). “When

reviewing a statute, our courts aim to effectuate the Legislature’s intent in passing

the statute.” Id. To discern the intent of the Legislature, we look first to the plain

language of the statute. Id. When we examine statutory language, we give the words

their ordinary meaning unless we determine that a different meaning was intended

by the Legislature. Id.

{12} “In addition to looking at the statute’s plain language, we will consider its

history and background and how the specific statute fits in the broader statutory

scheme.” Id. ¶ 12. “Because we consider statutes in the context of the broader act in

which they are situated, we read them in conjunction with statutes addressing the

same subject matter, ensuring a harmonious, common-sense reading.” Id.

B. The Issue of Whether the Marital Presumption Was Rebutted Was
Preserved
{13} Soon argues that Kammann did not preserve the “argument” in the district

court that genetic testing was statutorily required to rebut the marriage presumption.

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But our rules do not require the preservation of arguments, only issues. See Rule 12-

321(A) NMRA (“To preserve an issue for review, it must appear that a ruling or

decision by the trial court was fairly invoked.”). The issue of whether the marriage

presumption was overcome is central to this case. It was argued in the district court

and was, therefore, preserved.

C. Kammann’s Admission Under Oath That She Is Not a Genetic or
Biological Mother of the Twins Is Not Sufficient to Rebut Her
Presumption of Parentage
{14} Soon does not challenge whether Kammann is the presumed parent of the

twins. Indeed, as Soon’s spouse at the time of the birth, Kammann is entitled to the

marriage presumption and is therefore a presumed parent of the twins. When a child

is born during a marriage, as here, the UPA provides a “presumption of paternity”

of the spouse if “he and the mother of the child are married to each other and the

child is born during the marriage.” Section 40-11A-204(A)(1), (B). Despite this

problematically gendered statutory language, Kammann’s gender is irrelevant and

is not disqualifying. For several reasons, we construe these statutes expansively to

mean that a presumption of parentage, rather than a presumption of paternity, arises

when a child is born during a marriage.

{15} First, the UPA itself invites that interpretation: Section 40-11A-106 states that

UPA provisions “relating to determination of paternity apply to determinations of

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maternity insofar as possible.” Second, this Court has already taken a broad, gender-

neutral approach to parentage when construing a related UPA provision. See

Chatterjee, 2012-NMSC-019, ¶¶ 5, 48 (concluding under a prior version of the UPA

that a woman can bring a custody action by relying on a provision providing for a

presumption of “paternity” based on holding out a child as the woman’s own). Third,

a contrary result would seem to be in tension, at the very least, with Griego v. Oliver,

which held that “all rights, protections, and responsibilities that result from the

marital relationship shall apply equally to both same-gender and opposite-gender

married couples.” 2014-NMSC-003, ¶ 69, 316 P.3d 865; see also Debbie L. v.

Galadriel R., 2009-NMCA-007, ¶¶ 14-16, 145 N.M. 500, 201 P.3d 169

(underscoring that protecting the child’s welfare and maintaining established bonds

with psychological parents are critical conditions in custody determinations).

Therefore, we construe Section 40-11A-204(A)(1) and (B) broadly and neutrally

with respect to gender.3

3
We rely in this opinion on several other sections of the UPA that also use
gendered language, often with references to “paternity” or fatherhood. These include
Sections 40-11A-201(B)(1), 40-11A-608(A)-(B), (E), 40-11A-621(C). As
necessary, and without further explanation, we take a gender-neutral approach to
these sections as well.

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{16} We turn to the statutory framework at issue. Under the UPA, the parent-child

relationship can be established several different ways. See Section 40-11A-201

(describing the ways a parent-child relationship can be established pursuant to the

UPA). One way a parent-child relationship is conclusively established is by an

unrebutted presumption of parentage, such as the presumption afforded Kammann

because the twins were born during her marriage to Soon. Section 40-11A-201(B)(1)

(referencing Section 40-11A-204, which establishes the unrebutted assumption of

parentage for a person married to the mother when the child is born). This

presumption of parentage can be rebutted only pursuant to the adjudication

procedures established in UPA Article 6. Section 40-11A-204(B).

{17} In Article 6, the UPA provides that presumed parentage can be disproved by

the results of genetic testing, § 40-11A-631(D), but “only by admissible results of

genetic testing,” § 40-11A-631(A). The UPA explicitly defines the admissibility of

genetic testing in this context: genetic testing is not admissible “to adjudicate

parentage” unless the genetic testing is performed “(1) with the consent of both the

mother and the presumed, acknowledged or adjudicated [parent]; or (2) pursuant to

an order of the district court.” Section 40-11A-621(C).

{18} In this case, there was no mutual consent to genetic testing and no district

court order to conduct genetic tests, and neither party offered genetic test results.

8
The presumption of parenthood afforded Kammann under Section 40-11A-

204(A)(1) was thus unrebutted. Nevertheless, Soon argues that Kammann’s

presumption of parentage was rebutted because Kammann admitted that she is not a

genetic or biological parent of the twins. (emphasis added) Moreover, given the

uncontroverted facts of the twins’ conception, genetic parenthood seems impossible.

{19} As stated, we reject Soon’s argument. Soon has not pointed to anything in the

UPA to indicate that the specific admissibility requirements established by the

Legislature for genetic testing are optional, and we perceive none. It would

controvert the intent of the Legislature to allow the presumption of parentage to be

overcome on the basis of an alternative, ad hoc, procedure.

{20} Furthermore, and importantly, although genetic testing can provide a basis to

rebut the presumption of parenthood afforded married partners under Section 40-

11A-631, the absence of a genetic relationship is not necessarily dispositive. Stated

otherwise, the lack of a genetic relationship between the presumed parent and the

child or children as an existential matter does not conclusively rebut a presumption

of parentage. Instead, the UPA provides that even if the presumed parent is not a

genetic parent of the child, the marriage presumption can lead to an adjudication of

parenthood. Under the UPA, parentage is viewed through the lens of the best interest

9
of the child, not merely the genetics of the individuals involved in the dispute.

Section 40-11A-608(B). We explain.

{21} The Legislature has granted the district court the power to deny a motion for

genetic testing. Section 40-11A-608. A motion for genetic testing can be denied if

the district court determines that “(1) the conduct of the mother or the presumed or

acknowledged [parent] estops that party from denying parentage; and (2) it would

be inequitable to disprove the [presumed parent’s] relationship [with] the child.”

Section 40-11A-608(A). Moreover, the Legislature has provided that the district

court must consider the best interest of the child when deciding whether to grant or

deny a motion for genetic testing. See Section 40-11A-608(B) (“In determining

whether to deny a motion seeking an order for genetic testing pursuant to this section,

the district court shall consider the best interest of the child.” (emphasis added)).

{22} And to analyze whether a request for genetic testing should be denied on the

basis of the best interest of the child, the district court must consider a nonexhaustive

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list of nine factors. Section 40-11A-608(B).4 Two among these factors are

particularly noteworthy. First, the district court must be mindful of the effects on

equities that might arise from results of testing that disrupts the parent-child

relationship, or must consider “the chance of other harm to the child” if genetic

testing were ordered. Section 40-11A-608(B)(9). Second, and importantly, the

district court must specifically consider the possible harm to the child if the

4
The nine factors are:
(1) the length of time between the proceeding to adjudicate parentage and
the time that the presumed or acknowledged father was placed on notice that he
might not be the genetic father;
(2) the length of time during which the presumed or acknowledged father
has assumed the role of father of the child;
(3) the facts surrounding the presumed or acknowledged father’s discovery
of his possible nonpaternity;
(4) the nature of the relationship between the child and the presumed or
acknowledged father;
(5) the age of the child;
(6) the harm that may result to the child if presumed or acknowledged
paternity is successfully disproved;
(7) the nature of the relationship between the child and any alleged father;
(8) the extent to which the passage of time reduces the chances of
establishing the paternity of another man and a child-support obligation in favor of
the child; and
(9) other factors that may affect the equities arising from the disruption of
the father-child relationship between the child and the presumed or acknowledged
father or the chance of other harm to the child.

11
presumed or acknowledged parenthood is disproved by genetic testing. Section 40-

11A-608(B)(6). Thus, the procedure established by the Legislature provides that the

best interest of the child determines whether the district court should consider

genetic testing when determining parentage.

{23} This is consistent with the overarching policy goals of the UPA to “ensur[e]

that a child will be cared for, financially and otherwise, by two parents” and to

“address the interest that children have in their own support.” Chatterjee, 2012-

NMSC-019, ¶¶ 32-33; see also Julio C. Romero, A Gender-Neutral Reading of New

Mexico’s Uniform Parentage Act: Protecting New Mexican Families Regardless of

Sexuality, 43 N.M. L. Rev. 567, 571 (2013) (“[T]he primary purpose of determining

parentage under the UPA is to provide support for the child.”). In furtherance of

these goals, our appellate courts interpret the UPA to effectuate a broad definition

of “parent” in recognition that family structures have evolved in New Mexico. See

Chatterjee, 2012-NMSC-019, ¶ 34 (“The law needs to address traditional

expectations in light of current realities to keep up with the changing demographic

of American families and to protect the children born into them.”). As in this case,

we have found occasion to reject constraints imposed by gender, biology, and family

structure that might undermine the UPA’s primary purpose of ensuring that children

have parents who care for and support them.

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{24} In Chatterjee, for example, we concluded that a broad, gender-neutral

definition of parentage served the best interest of the child, holding that a woman

asserting parentage could rely on a UPA presumption of paternity that was

seemingly afforded (on the plain language of the statute) to a man that holds out a

child as his own. 2012-NMSC-019, ¶¶ 9, 18, 20, 48. We noted that the presumption

arose not from biology, but from a person’s conduct, and that a narrow focus on

biology can come at the expense of the best interest of the child. Id. ¶¶ 15, 46.

{25} In Mintz v. Zoernig, our Court of Appeals concluded that a sperm donor who

assumes a parental role must provide child support, even where there was a

preconception agreement that he had no obligation to support the child financially.

2008-NMCA-162, ¶ 1, 145 N.M. 362, 198 P.3d 861. Applying the holding out

provision under the UPA, the Mintz Court concluded that the agreement made by the

father to assume a parental role—which he did—without financial responsibilities

was unenforceable because the agreement ran afoul of the strong public policy goal

favoring parental support of their children. Id. ¶¶ 3, 10-11, 14-15.

{26} The best interest of the child test reverberates throughout New Mexico law

relating to children, not merely under the UPA. Indeed, our Legislature consistently

emphasizes the importance of the best interest of the child in legal determinations

affecting children. See, e.g., NMSA 1978, § 40-4-9(A) (1977) (requiring a district

13
court to “determine [child] custody in accordance with the best interests of the child”

if the minor is under the age of 14 and prescribing a multifactor test); NMSA 1978,

§ 40-12-2 (1987) (stating that “[t]he purpose of the Domestic Relations Mediation

Act is to assist the court . . . in determining the best interests of the children involved

in domestic relations cases”); NMSA 1978, § 32A-1-3(A) (2009) (stating that the

legislative purpose of the Children’s Code is “first to provide for the care, protection

and wholesome mental and physical development of children” with the “child’s

health and safety” being “the paramount concern”); NMSA 1978, § 40-10B-10(C)

(2001) (requiring a guardian ad litem to “report to the court concerning the best

interests of the child”); NMSA 1978, § 32A-1-4(F) (2023) (defining “court-

appointed special advocate[s]” who “assist the court in determining the best interests

of the child by investigating the case and submitting a report to the court”).

{27} In this case, like Chatterjee and Mintz, the outcome is driven by the

requirement that courts must consider the interests of the child, regardless of the

circumstances of conception or familial permutation. Because the UPA and this

Court prioritize a child’s interest in being “cared for . . . by two parents” and because

of “the interest that children have in their own support,” Chatterjee, 2012-NMSC-

019, ¶¶ 32-33, we resist rigid constraints of biology, gender, and family structure

when analyzing parentage issues. See Vest v. State ex rel. N.M. Hum. Servs. Dep’t,

14
1993-NMCA-144, ¶ 19, 116 N.M. 708, 866 P.2d 1175 (“We are not prepared to

assume that the welfare of children is best served by a narrow definition of those

whom we permit to continue to manifest their deep concern for a child’s growth and

development.” (internal quotation marks and citation omitted)). The district court,

by circumventing the procedure established in the UPA with regard to genetic

testing, impermissibly failed to consider the best interest of the child.

III. CONCLUSION
{28} For the reasons stated, we hold that Kammann’s marriage presumption of

parentage, which is viewed through the lens of the best interest of the child, is

unrebutted as established in the UPA. Additionally, no genetic test results were

admitted pursuant to the required procedures established in the UPA. Accordingly,

Kammann is a parent of the twin children.

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{29} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

C. SHANNON BACON, Justice

NANCY J. FRANCHINI, Judge
Sitting by designation

CINDY. M. MERCER, Judge
Sitting by designation

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